Petition for Writ of Certiorari — JGJ Merchandise Corp., Petitioner v. City of New York, New York, et al.

NO.

In the Supreme Court of the United States

JGJ MERCHANDISE CORP.,

v.

Petitioner,

THE CITY OF NEW YORK, et al.,

Respondents.

On Petition for Writ of Certiorari to the

State of New York Court of Appeals

PETITION FOR WRIT OF CERTIORARI

ERICA T. DUBNO

Counsel of Record

FAHRINGER & DUBNO

767 Third Avenue, Suite 3600

New York, New York 10017

(212) 319-5351

erica.dubno@fahringerlaw.com

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

1. Where a municipality seeks to regulate and restrict

the operation of establishments that offer

expression protected by the First Amendment under

a zoning ordinance, what burden of proof must the

municipality bear once the constitutionally

protected establishments have furnished evidence

that disputes the municipality’s rationale for its

zoning ordinance?

2. Whether New York City’s adult zoning resolution,

which authorizes the Building Commissioner to

consider “titles” and adopt rules to determine the

“substantial purpose” of a bookstore, among other

factors, endows officials with unbridled discretion

and violates the First Amendment.

ii

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT

Petitioner JGJ Merchandise Corp., d/b/a Vishans

Video a/k/a Mixed Emotions, was an original Plaintiff

to the action. There was another Plaintiff in the lower

courts -- For the People Theatres of N.Y., Inc., d/b/a

Fair Theatre – which was not a party in the New York

Court of Appeals during the most recent proceeding.

Petitioner has no parent companies, subsidiaries, or

affiliates to list pursuant to Rule 29.6.

Respondents in this Court were the Defendants

throughout these proceedings: The City of New York;

Hon. Michael R. Bloomberg, as Mayor of the City of

New York; Amanda M. Burden, as Director of City

Planning, Department of City Planning of the City of

New York; and Patricia J. Lancaster, as Commissioner

of Buildings, Department of Buildings of the City of

New York.

The caption of the New York Court of Appeals’

decision also includes a separate action -- Ten’s

Cabaret, et al. v. City of New York, et al., Index No.

121197/02 (Sup. Ct. N.Y. Co.). The cases were tried

separately but consolidated by the Court of Appeals for

oral argument and decision. The Plaintiffs in that

action are Ten’s Cabaret, Inc. f/k/a Stringfellow’s of

New York, Ltd.; Pussycat Lounge, Inc. d/b/a “Pussycat

Lounge”; Church Street Café, Inc. d/b/a “Baby Doll”;

and 62-20 Queens Blvd., Inc., d/b/a “Nickels.” Upon

information and belief those Plaintiffs will be filing a

Petition for a Writ of Certiorari in this Court from the

same decision of the New York Court of Appeals

(App. 186). Upon information and belief they have no

parent companies, subsidiaries or affiliates to list.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

PARTIES TO THE PROCEEDING

AND RULE 29.6 STATEMENT . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

OPINIONS AND ORDERS BELOW . . . . . . . . . . . . 1

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

CONSTITUTIONAL PROVISION INVOLVED . . . 2

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 3

The Challenged Resolution . . . . . . . . . . . . . . . . . 3

This Court’s Decision in Los Angeles v. Alameda

Books Provides the “Analytical Framework” for

the New York Court of Appeals’ Decision . . . . . . 6

The Remand Proceedings . . . . . . . . . . . . . . . . . . 9

REASONS FOR GRANTING CERTIORARI . . . . . 11

This Case Involves Constitutional Issues that

are Important and Likely to Recur Across the

Nation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

This Case Presents a Perfect Platform to Review

the Constitutional Questions . . . . . . . . . . . . . . 16

New York’s Court of Last Resort Decided a

Significant Question of Federal Law, Arising

Under the First Amendment, on an Issue Which

has Caused Conflicts in the Law . . . . . . . . . . . . 17

iv

The Case also Presents an Important

Constitutional Question of Whether New York

City’s Adult Zoning Resolution, Which

Authorizes the Building Commissioner to

Consider “Titles” and Adopt Rules to Determine

the “Substantial Purpose” of a Bookstore,

Among Other Factors, Violates the First

Amendment . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

APPENDIX

Appendix A Decision in the Supreme Court of the

State of New York, County of New York

(September 9, 2003) . . . . . . . . . . . App. 1

Appendix B Order in the New York Supreme

Court, Appellate Division, First

Department

(April 12, 2005) . . . . . . . . . . . . . . App. 8

Appendix C Decision in the New York Court of

Appeals

(December 15, 2005) . . . . . . . . . App. 41

Appendix D Decision in the Supreme Court of the

State of New York, County of New York

(April 14, 2010) . . . . . . . . . . . . . App. 74

Appendix E Judgment and Decision in the New

York Supreme Court, Appellate

Division, First Department

(April 7, 2011) . . . . . . . . . . . . . . App. 91

Appendix F Decision in the Supreme Court of the

State of New York, County of New York

(August 30, 2012) . . . . . . . . . . . App. 118

v

Appendix G Decision in the New York Supreme

Court Appellate Division, First

Department

(July 21, 2015) . . . . . . . . . . . . . App. 142

Appendix H Decision and Remittitur in the New

York Court of Appeals Upholding the

Constitutionality of the Adult Zoning

Resolution

(June 6, 2017) . . . . . . . . . . . . . . App. 186

Appendix I Decision in the New York Court of

Appeals Denying Reargument

(September 12, 2017) . . . . . . . . App. 219

Appendix J Decision in the New York Court of

Appeals Denying a Stay Pursuant to

28 U.S.C. § 2101(f)

(June 27, 2017) . . . . . . . . . . . . . App. 221

Appendix K New York City Adult Zoning

Resolution No. N 010508 ZRY

(October 31, 2001) . . . . . . . . . . App. 223

vi

TABLE OF AUTHORITIES

CASES

City of Lakewood v. Plain Dealer Publishing Co.,

486 U.S. 750 (1988) . . . . . . . . . . . . . . . . . . . . . . 21

City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425 (2002) . . . . . . . . . . . . . . . . . . passim

City of New York v. Les Hommes,

94 N.Y.2d 267 (1999) . . . . . . . . . . . . . . . . . . . . . . 5

Daytona Grand, Inc. v. City of Daytona Beach, Fla.,

No. 07-768, 2007 WL 4340920 (U.S. 2007),

cert. denied, 552 U.S. 1183 (2008) . . . . . . . . . . . 15

Freedman v. Maryland,

380 U.S. 51 (1965) . . . . . . . . . . . . . . . . . . . . . . . 20

Hickerson v. City of New York,

997 F. Supp. 418 (S.D.N.Y. 1998), aff’d, 146 F.3d

99 (2d Cir. 1998), cert. denied, 525 U.S. 1067

(1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

Jenkins v. Georgia,

418 U.S. 153 (1974) . . . . . . . . . . . . . . . . . . . . . . 16

Missouri Ass’n of Club Executives v. Koster,

No. 11-994, 2012 WL 457672 (U.S. 2012),

cert. denied, 568 U.S. 813 (2012) . . . . . . . . . . . . 15

Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee

County, Fla.,

337 F.3d 1251 (11th Cir. 2003), cert. denied, 541

U.S. 988 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

vii

Peek-A-Boo Lounge of Bradenton, Inc. v. Manatee

County, Fla.,

No. 10-1300, 2011 WL 1540437 (U.S. 2011),

cert. denied, 563 U.S. 1033 (2011) . . . . . . . . . . . 15

P.M. Realty & Investments, Inc. v. City of Tampa,

Fla.,

No. 06-1161, 2007 WL 579740 (U.S. 2007),

cert. denied, 550 U.S. 918 (2007) . . . . . . . . . . . . 15

Pooh Bah Enterprises, Inc. v. The City of Chicago,

No. 06-1614, 2007 WL 1985586 (U.S. 2007),

cert. denied, 552 U.S. 941 (2007) . . . . . . . . . . . . 18

Raley v. Ohio,

360 U.S. 423 (1959) . . . . . . . . . . . . . . . . . . . . . . 16

Schad v. Borough of Mt. Ephraim,

452 U.S. 61 (1981) . . . . . . . . . . . . . . . . . . . . . . . 21

Shuttlesworth v. City of Birmingham, Ala.,

394 U.S. 147 (1969) . . . . . . . . . . . . . . . . . . . . . . 20

Stringfellow’s of New York, Ltd. v. City of New York,

171 Misc. 2d 376 (Sup. Ct. N.Y. Co. 1996), aff’d,

241 A.D.2d 360 (1st Dept. 1997), aff’d, 91 N.Y.2d

382 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

XLP Corp. v. County of Lake,

359 Ill.App.3d 239 (App. Ct. Ill. 2005),

cert. denied, 547 U.S. 1128 (2006) . . . . . . . . 17, 18

CONSTITUTION

U.S. Const. amend. I . . . . . . . . . . . . . . . . . . . . passim

viii

STATUTES AND RULES

28 U.S.C. § 2101(f) . . . . . . . . . . . . . . . . . . . . . . . . . . 10

28 U.S.C. § 1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

Sup. Ct. R. 23.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

OTHER AUTHORITIES

Daniel R. Aaronson, The First Amendment in

Chaos: How the Law of Secondary Effects is

Applied and Misapplied by the Circuit Courts, 63

U. Miami L. Rev. 741 (April 2009) . . . . . . . . . . 18

Christopher J. Andrew, The Secondary Effects

Doctrine: The Historical Development, Current

Application, and Potential Mischaracterization

of an Elusive Judicial Precedent, 54 Rutgers L.

Rev. 1175 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . 14

Clay Calvert & Robert D. Richards, Stripping Away

First Amendment Rights: The Legislative Assault

on Sexually Oriented Businesses, 7 N.Y.U. J.

Legis. & Pub. Pol’y 287 (2004) . . . . . . . . . . . . . . 14

Verena Dobnik, “NYC’s long war on storefront porn

reaches new tipping point”, Associated Press

(Aug. 6, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Roger Enriquez, Jeffrey M. Cancino & Sean P.

Verano, A Legal and Empirical Perspective on

Crime and Adult Establishments: A Secondary

Effects Study in San Antonio, Texas, 15 Am. U.J.

Gender Soc. Pol’y & Law 1 (2006) . . . . . . . . . . . 14

Santiago Legarre & Gregory J. Mitchell, Secondary

Effects and Public Morality, 40 Harv. J.L. &

Pub. Pol’y 321 (2017) . . . . . . . . . . . . . . . . . . . . . 14

ix

Regulation of Adult Entertainment Businesses -Zoning, 12 Bus. & Com. Litig. Fed. Cts. § 128:53

(4th ed. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Stephen M. Shapiro, et al., Supreme Court Practice

(10th ed. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 16

1

Petitioner JGJ Merchandise Corp., d/b/a Vishans

Video a/k/a Mixed Emotions respectfully prays that a

Writ of Certiorari issue to review the judgment and

opinion of the New York Court of Appeals in the abovecaptioned proceeding.

OPINIONS AND ORDERS BELOW

The New York Court of Appeals’ decision, which

upheld the constitutionality of New York City’s Adult

Zoning Resolution (No. N 010508 ZRY), is reproduced

as Appendix H. See For the People Theatres of N.Y., Inc.

v. City of New York, 29 N.Y.3d 340 (2017). The Court of

Appeals’ denial of reargument appears as Appendix I.

For the People Theatres of N.Y., Inc. v. City of New

York, 29 N.Y.3d 1115 (2017).

The Court of Appeals reversed a decision from the

New York Appellate Division, First Department, which

struck down the Adult Zoning Resolution as

unconstitutional. Appendix G. For the People Theatres

of N.Y., Inc. v. City of New York, 131 A.D.3d 279 (1st

Dept. 2015). The Appellate Division had affirmed the

trial judge’s finding that the Adult Zoning Resolution

is unconstitutional. Appendix F. For the People

Theatres of N.Y., Inc. v. City of New York, 38 Misc.3d

663 (Sup. Ct. N.Y. Co. 2012).

The trial judge previously found the law to be

unconstitutional and granted summary judgment.

Appendix A. For the People Theatres of N.Y., Inc. v. City

of New York, 1 Misc.3d 394 (Sup. Ct. N.Y. Co. 2003).

The Appellate Division reversed. Appendix B. For the

People Theatres of N.Y., Inc. v. City of New York, 20

A.D.3d 1 (1st Dept. 2005). The New York Court of

2

Appeals remanded for further proceedings. Appendix C.

For the People Theatres of N.Y., Inc. v. City of New

York, 6 N.Y.3d 63 (2005). The trial court’s decision on

remand is reproduced as Appendix D. For the People

Theatres of N.Y., Inc. v. City of New York, 27 Misc.3d

1079 (Sup. Ct. N.Y. Co. 2010). The Appellate Division

remanded for further proceedings. Appendix E. For the

People Theatres of N.Y., Inc. v. City of New York, 84

A.D.3d 48 (1st Dept. 2011).

JURISDICTION

The New York Court of Appeals issued its judgment

and opinion on June 6, 2017. App.186. A timely petition

for reargument was denied on September 13, 2017.

App.219. This Petition is being filed within 90 days of

the reargument denial. The jurisdiction of this Court is

invoked under 28 U.S.C. § 1257.

CONSTITUTIONAL

PROVISION INVOLVED

The First Amendment to the United States

Constitution provides in relevant part:

Congress shall make no law ... abridging the

freedom of speech ....

3

STATEMENT OF THE CASE

In 1995, the City of New York enacted a zoning

resolution to regulate adult establishments. The

resolution was only passed after careful study of

whether the types of businesses that existed then

caused adverse secondary effects. The City indicated

that bookstores that limit their adult component to less

than 40 percent of their floor space and stock comply

with the Resolution and are not the types of

establishments alleged to cause negative effects (the

“60/40 Rule”). Based, in part, on those representations,

the 1995 Resolution was consistently upheld.1

Starting in 1998, when the state and federal courts

affirmed the constitutionality of the 1995 Resolution

and the 60/40 Rule, bookstores across all five boroughs

of New York City radically reduced their concentration

on adult material and complied with the 60/40 Rule.

App.80.

The Challenged Resolution

Nevertheless, during the last 100 days of Mayor

Rudolph Giuliani’s term in office, an amendment was

rushed through the City Council that completely

altered the existing adult zoning restrictions: Text

Amendment N 010508 ZRY to the City’s Zoning

Resolution (the “Adult Zoning Resolution”). See

Appendix K. Consideration of the percentage of floor

1

See Stringfellow’s of New York, Ltd. v. City of New York, 171

Misc. 2d 376 (Sup. Ct. N.Y. Co. 1996), aff’d, 241 A.D.2d 360 (1st

Dept. 1997), aff’d, 91 N.Y.2d 382 (1998); Hickerson v. City of New

York, 997 F. Supp. 418 (S.D.N.Y. 1998), aff’d, 146 F.3d 99 (2d Cir.

1998), cert. denied, 525 U.S. 1067 (1999).

4

space was eliminated completely for theaters and

cabarets. The 60/40 Rule was, technically, retained for

bookstores. However, that test was eviscerated by eight

restrictions which regulate the method of operation of

bookstores.

Specifically, the new definition of an “adult

bookstore” provides that a bookstore’s non-adult stock

“shall not be considered” in calculating compliance with

the 60/40 Rule if any one of eight alleged “sham”

factors exist. App.81, 228-29.

(1) The store’s layout requires customers to pass

through an area with adult material to access

any non-adult material;

(2) the bookstore has booths where adult movies

or live performances are available for viewing by

customers;

(3) non-adult material is paid for near where any

adult material is located;

(4) non-adult DVDs are offered for sale only

while adult DVDs can be sold or rented;

(5) the bookstore offers a greater number of

different adult titles than the number of

different non-adult titles;

(6) minors are restricted from the whole store or

any section with non-adult material;

(7) the bookstore has a sign advertising adult

material that is “disproportionate in size” to

signs for non-adult material; or

5

(8) the bookstore has a window display in which

the number of adult products is disproportionate

to the number of non-adult products. App.81,

229-30.2

In addition, even if a bookstore complies with the

60/40 floor space and stock requirements, and only has

a handful of adult DVDs or books, the manager may be

subject to a criminal prosecution based upon

[o]ther features relating to configuration and

layout or method of operation, as set forth in

rules adopted by the Commissioner of Buildings,

which the Commissioner has determined render

the sale or rental of “adult printed or visual

material” a substantial purpose of the business

conducted in such store. App.150, 231.

2

Virtually all of the factors added onto the definition of adult

bookstores result from the City’s efforts to undo judicial decisions,

instead of from zoning considerations. See, e.g. City of New York v.

Les Hommes, 94 N.Y.2d 267 (1999).

6

The City concededly conducted no studies or

research into whether or not bookstores that fully

complied with the 60/40 Rule, and have a minimum

concentration (less than 40 percent) of adult material,

cause any adverse secondary effects warranting stricter

regulation. App.71-72. Instead, the City urged that it

could rely upon a study conducted back in 1994 of

adverse secondary effects caused by adult businesses.

App.66.

This Court’s Decision in Los Angeles v.

Alameda Books Provides the “Analytical

Framework” for the New York Court of

Appeals’ Decision

In 2005, this case made its first trip to the New

York Court of Appeals. At that time, in a sharply

divided (4-3) decision, the state’s highest court held

that this Court’s decision in City of Los Angeles v.

Alameda Books, Inc., 535 U.S. 425 (2002), “supplies the

analytical framework for this appeal” regarding “what

a municipality must demonstrate in order to sustain a

zoning ordinance regulating adult businesses in the

face of a First Amendment challenge.” App.56.

In Alameda Books, this Court set out a burdenshifting framework for evaluating the constitutionality

of a zoning ordinance that regulates adult businesses.

The municipality must produce evidence that “fairly

supports” its rationale for the ordinance. The plaintiffs

must then “cast direct doubt on this rationale.” The

burden then “shifts back to the municipality to

supplement the record with evidence renewing support

for a theory that justifies its ordinance.” App.60,

quoting 535 U.S. at 438-39.

7

The Court of Appeals concluded that New York City

met its “very low” evidentiary hurdle under Stage I to

justify a secondary-effects rationale for the Adult

Zoning Resolution. App.63. The burden then shifted to

the Bookstores to demonstrate, under Stage II, that the

“City’s evidence does not support its rationale”, or to

furnish evidence that “disputes the City’s factual

findings.” App.65.

The Court found that the Plaintiffs met their

burden under Stage II by disputing the “factual

findings undergirding” the Adult Zoning Resolution.

App.63. Specifically, the Bookstores presented

affidavits and reports from “Dr. Elliott D. Sclar, an

economist by training who is professor of urban

planning and public affairs at Columbia University.”

App.63-64. After a comprehensive study, Professor

Sclar concluded that the “presence of a 60/40 bookstore

or theater within a specific area could not be linked to

any weakening or decrease of property values within

that area.” App.64 (emphasis in original). Similarly,

after an in-depth study, Dr. Charles Winick, of the

graduate faculty at John Jay College of Criminal

Justice, found “no 60/40 bookstores or theaters

appeared on the NYPD’s list of hot spots for crime; no

relationship between prostitution arrests and these

bookstores and theaters; and no correlation between

any concentration of these bookstores and theaters in

a precinct and the violent felony rate.” App.64-65.

The Court of Appeals concluded that under Stage III

of Alameda Books’ test, the “burden shifted back to the

City ‘to supplement the record with evidence renewing

support for a theory that justifies its ordinance.’”

App.65.

8

The Court remanded the matter for a trial on the

factual question of “whether 60/40 businesses are so

transformed in character that they no longer resemble

the kinds of adult uses found, both in the 1994 [New

York City Department of City Planning] Study and in

studies and court decisions around the country, to

create negative secondary effects -- as plaintiffs

contend -- or whether these businesses’ technical

compliance with the 60/40 formula is merely a sham -as the City contends.” App.66.

The Court of Appeals did not set forth specific

guidelines or a roadmap for the trial court on remand.

The Court did, however, state:

If the trier of fact determines, after review of

this evidence, that the City has fairly supported

its position on sham compliance -- i.e., despite

formal compliance with the 60/40 formula, these

businesses display a predominant, ongoing focus

on sexually explicit materials or activities, and

thus their essential nature has not changed -the City will have satisfied its burden to justify

strengthening the 1995 Ordinance by enacting

the 2001 Amendments, and will be entitled to

judgment in its favor.

If not, plaintiffs will prevail on their claim that

the 2001 Amendments are insufficiently narrow

and therefore violate their free speech rights.

In that event, plaintiffs will be entitled to

judgment and a declaration that the 2001

Amendments are unconstitutional. App.67.

9

Three Judges from the Court of Appeals, including

then Chief Judge Judith Kaye, dissented because the

City was enacting a new law restricting free

expression, rather than closing an alleged “loophole”

and, as such, the City could not “rely entirely on the

evidence it presented in support of the earlier law.”

App.68.3 At that time, because of the remand, the Court

of Appeals’ decision was not a final order appealable to

this Court.

The Remand Proceedings

On August 30, 2012, after an evidentiary trial and

another remand from the State’s Appellate Division

(App.74, 91), the New York Supreme Court found

“significant and distinct differences” between the

exclusively adult establishments that existed in 1994

and 60/40 entities, such that the “current

establishments no longer resemble their 1994

predecessors.” App.139.

Justice Louis B. York, who personally inspected

establishments during the trial, concluded that “these

entities no longer operate in an atmosphere placing

more dominance of sexual matters over non-sexual

ones.” App.139. Since the City failed to meet its

burden, Justice York granted judgment to the

3

The dissenters found that the Plaintiffs “produced substantial

evidence that the 60/40 businesses are functionally different from

the pre-1995 businesses.” App.72. Moreover, “many of the

community representatives in areas with a heavy presence of 60/40

businesses who had supported the 1995 resolution now opposed

the 2001 amendment.” Id. Therefore, the dissenters would have

struck down this change to the existing law. Id.

10

Bookstores and declared the Adult Zoning Resolution

to be unconstitutional.4 App.141.

On July 21, 2015, the Appellate Division affirmed

that the Adult Zoning Resolution, as to bookstores and

cabarets, is an “unconstitutional violation” of the First

Amendment. The trial court and Appellate Division

permanently enjoined the City from enforcing the

amendments. App.164-65.

For the entire 16-year period since New York City

amended its Zoning Resolution, back in 2001, those

provisions were consistently stayed or enjoined through

court orders and decisions. On June 27, 2017, a single

Judge of the New York Court of Appeals denied the

Bookstores’ application for a stay pursuant to 28 U.S.C.

§ 2101(f) pending an application to this Court for a

Writ of Certiorari. App. 221. See Supreme Court Rule

23.3. On July 7, 2017, Justice Ginsburg denied a stay.

Most enforcement is currently stayed by stipulation

among the parties.

4

Justice York previously found that the City failed to meet its

burden to establish that theaters, which reduce their adult

component to less than 40 percent of the business, have a

predominant, ongoing focus on adult materials. App.89. The City

did not appeal Justice York’s judgment relating to theaters.

App.153.

11

REASONS FOR GRANTING CERTIORARI

This case presents an important constitutional

question left wide open in the wake of this Court’s

plurality decision in City of Los Angeles v. Alameda

Books, Inc., 535 U.S. 425 (2002), regarding the burden

of proof a municipality must bear, under the First

Amendment, once establishments that offer

constitutionally protected expression dispute the

rationale for the adult zoning ordinance.

More than 15 years ago this Court granted

Certiorari to examine the constitutionality of Los

Angeles’ adult zoning scheme at the summary

judgment stage. Only four Justices (Rehnquist, C.J.,

O’Connor, Scalia, and Thomas, JJ.) joined the plurality

decision in Alameda Books. That fractured decision

crafted a three-part burden-shifting test to be applied

when municipalities seek to address the alleged

secondary effects of protected speech. Justices

Ginsburg, Souter, and Stevens dissented from the

plurality’s decision, which was never able to obtain

majority support.

Under Stage I, the “municipality’s evidence must

fairly support the municipality’s rationale for its

ordinance.” 535 U.S. at 438. Then, under Stage II, the

burden shifts to the bookstore owners to cast doubt on

the rationale either by “demonstrating that the

municipality’s evidence does not support its rationale

or by furnishing evidence that disputes the

municipality’s factual findings.” 535 U.S. at 438-39. If

the bookstores “succeed in casting doubt on a

municipality’s rationale in either manner,” under Stage

III, the burden shifts back to the municipality to

“supplement the record with evidence renewing

12

support for a theory that justifies its ordinance.” 535

U.S. at 439.

The plurality did not spell out the specific burden of

proof that a municipality must meet under Stage III

once the businesses have called into question -- by

actual proof and evidence -- the rationale for the zoning

ordinance. Thus, although Alameda Books established

a skeleton for considering constitutional challenges it

never put any meat on those gaunt bones to explain

how the burden-shifting test is properly applied.

Guidance is now needed from this Court to flesh out

the proper standards. The confusing plurality decision

in Alameda Books has left federal and state courts

conflicted and in disarray. Municipalities across the

nation do not know the true burdens of proof that they

must meet to regulate adult businesses. Legal

commentators cry out for guidance. And, this Court

continues to be plagued by petitions for Certiorari

which raise important questions resulting from

uncertainties caused by Alameda Books.

Certiorari should be granted to resolve, once and for

all, the recurring questions remaining after Alameda

Books. The issues are squarely and clearly presented in

this case, which involves the constitutionality of a

highly publicized zoning law from the most populous

city in the nation.

Moreover, because of ambiguities resulting from

Alameda Books, New York’s highest court conflated the

City’s burdens under Stage I and III to impermissibly

lower municipalities’ burdens of proof. Lacking

guidance from this Court, the New York Court of

Appeals construed Alameda Books to impose the same

13

“modest evidentiary burden” on a municipality during

a Stage I analysis (before the bookstores have called

into question the municipality’s rationale) and during

Stage III (after the bookstores have presented evidence

undermining and discrediting the municipality’s

rationale). App.210.

Specifically, the Court of Appeals concluded that a

municipality need only present evidence that “fairly

supports” the rationale for its ordinance during both

Stage I and Stage III. App.210. Thus, the Court grafted

the light burden that a municipality must meet for its

initial burden under Stage I onto Stage III as well.

However, this effectively merges the Stages into each

other and allows precious speech to hang in the

balance. Certainly, given the First Amendment

implications, a municipality must do more than merely

present evidence that “fairly supports” its rationale

once that rationale has been discredited.

This Case Involves Constitutional Issues

that are Important and Likely to Recur

Across the Nation

The issues presented by this case regarding the

burdens of proof to sustain adult zoning regulations are

of considerable interest -- in both federal and state

courts -- across the nation. Since Alameda Books was

decided 15 years ago, municipalities everywhere have

and continue to enact zoning resolutions regulating

adult establishments. Indeed, “Americans increasingly

seek adult entertainment, yet their locally-elected

14

representatives increasingly are imposing limitations

on their ability to obtain it.”5

Many commentators recognize the important and

recurring nature of these issues. For instance, the

Harvard Journal of Law & Public Policy recently

reported that “although Alameda, the most recent

Supreme Court case involving secondary effects, was

decided in 2002, the philosophical and jurisdictional

problem at the root of these cases remains, perhaps

now more than ever, exceedingly relevant.”6

5

Clay Calvert & Robert D. Richards, Stripping Away First

Amendment Rights: The Legislative Assault on Sexually Oriented

Businesses, 7 N.Y.U. J. Legis. & Pub. Pol’y 287, 290 (2004).

6

Santiago Legarre & Gregory J. Mitchell, Secondary Effects and

Public Morality, 40 Harv. J.L. & Pub. Pol’y 321, 322 (2017). See

also Christopher J. Andrew, The Secondary Effects Doctrine: The

Historical Development, Current Application, and Potential

Mischaracterization of an Elusive Judicial Precedent, 54 Rutgers

L. Rev. 1175, 1212 (2002) (noting that Alameda Books “represents

a missed opportunity for the court to come to a decision on the

intricacies of the secondary effects analysis, which would be useful

once the Court begins applying the analysis consistently outside

the area of adult entertainment regulations”); Roger Enriquez,

Jeffrey M. Cancino & Sean P. Verano, A Legal and Empirical

Perspective on Crime and Adult Establishments: A Secondary

Effects Study in San Antonio, Texas, 15 Am. U.J. Gender Soc. Pol’y

& Law 1, 39 (2006) (“The post-Alameda jurisprudence makes it

clear that courts are struggling with the issue of ‘quantum and

quality’ of evidence necessary to establish an association or link

between sexually oriented businesses and negative secondary

effects”).

15

Because of the confusion that has arisen through

the disjointed decision in Alameda Books, and its

equally divided progeny, Certiorari is warranted to

resolve the questions presented by this case. This Court

should give definitive guidance as to municipalities’

burdens when dealing with adult expression. This issue

is not going away. Instead, it will continue to fester

across the country. It will also continue to spawn other

Petitions for Certiorari.7

7

See, e.g., Daytona Grand, Inc. v. City of Daytona Beach, Fla., No.

07-768, 2007 WL 4340920 (U.S. 2007), cert. denied, 552 U.S. 1183

(2008) (petition for certiorari noting that after Alameda Books the

“lack of a clear evidentiary standard for evaluating the validity of

the secondary effects doctrine in individual communities has led to

discord among the Circuits and an endless series of cases which

can best be described as dysfunctional”); Peek-A-Boo Lounge of

Bradenton, Inc. v. Manatee County, Fla., No. 10-1300, 2011 WL

1540437 (U.S. 2011), cert. denied, 563 U.S. 1033 (2011) (noting that

“[e]ven though there is agreement on who articulated the ‘holding’

of Alameda Books, there is no agreement as to what type of

evidence is relevant, or what that ‘burden’ actually is, after it

‘shifts’”); P.M. Realty & Investments, Inc. v. City of Tampa, Fla.,

No. 06-1161, 2007 WL 579740 (U.S. 2007), cert. denied, 550 U.S.

918 (2007) (urging the Court to “provide much needed clarification

of the ‘burden shifting’ analysis articulated in the Alameda Books

decision”); Missouri Ass’n of Club Executives v. Koster, No. 11-994,

2012 WL 457672 (U.S. 2012), cert. denied, 568 U.S. 813 (2012)

(pointing out the “conflict among the lower courts regarding the

evidentiary burdens required by Alameda Books”). This list is

illustrative and by no means exhaustive.

16

This Case Presents a Perfect Platform to

Review the Constitutional Questions

This case presents an ideal platform for review. The

New York Court of Appeals, which is the State’s court

of last resort, decided the Bookstores’ claims on federal

constitutional grounds, not on an adequate or

independent state ground. Indeed, the State’s highest

court determined that Alameda Books “supplies the

analytical framework for this appeal” and held that

“the amendments do not violate plaintiffs’ First

Amendment rights.” App.56, 187.

There can be “no question as to the proper

presentation of a federal claim when the highest state

court passes on it.” Raley v. Ohio, 360 U.S. 423, 436-37

(1959). It is “enough if the state court ‘reached and

decided it.’” Stephen M. Shapiro, et al., Supreme Court

Practice 197 (10th ed. 2013), quoting Jenkins v.

Georgia, 418 U.S. 153, 157 (1974).

The State Supreme Court and Appellate Division

also held that the “2001 amendments to the Zoning

Law are an unconstitutional violation of the First

Amendment.” App.141, 164, 200. The Court of Appeals’

determination is a final decision that is fully

reviewable by this Court. The decision relates to

radical restrictions on bookstores in the largest and

most culturally diverse city in the nation. The issues

are ripe and ready for review, and municipalities across

the nation are looking to this Court for guidance.8

8

The scope and breadth of this case are further evidenced by the fact

that this high-profile case has received extensive national press and

news coverage. See, e.g. Verena Dobnik, “NYC’s long war on storefront

porn reaches new tipping point”, Associated Press (Aug. 6, 2017).

17

The need for prompt guidance counsels against

further delay. This case is an excellent vehicle for such

a reexamination. The inherent importance of the

questions presented by this Petition combined with the

substantial impact the answers will have on the

exercise of free speech warrant review of this case.

New York’s Court of Last Resort Decided a

Significant Question of Federal Law, Arising

Under the First Amendment, on an Issue

Which has Caused Conflicts in the Law

Review should also be granted because the New

York Court of Appeals’ decision stands in conflict with

the law in other areas. For instance, in Peek-A-Boo

Lounge of Bradenton, Inc. v. Manatee County, Fla., 337

F.3d 1251 (11th Cir. 2003), cert. denied, 541 U.S. 988

(2004), the Eleventh Circuit concluded that under a

Stage III Alameda Books analysis, once the plaintiffs

have cast doubt on the municipality’s rationale for its

ordinance, the reviewing court must “decide by a

preponderance of the evidence” whether “there remains

credible evidence” upon which the municipality can

reasonably rely to support its theory. 337 F.3d at 1273

(emphasis supplied). In stark contrast, New York’s

court of last resort only requires a municipality to

“fairly support” its rationale. App.210. The heavier

burden imposed by the Eleventh Circuit better

comports with the necessities of the First Amendment

than New York’s unexacting approach.

Other state courts around the country have also

called out for clearer guidance from this Court

regarding the proper standards to be applied to

governmental regulation of adult uses. See, e.g., XLP

Corp. v. County of Lake, 359 Ill.App.3d 239, 244 (App.

18

Ct. Ill. 2005) (lamenting that “guidance from the

Supreme Court on this issue has been somewhat less

than clear” and noting the “somewhat nebulous state of

the case law” because the decisions from the Supreme

Court have been fractured and contain no clear

consensus), cert. denied, 547 U.S. 1128 (2006).

The First Amendment Lawyers Association and

Free Speech Coalition have cautioned that “despite this

Court’s best attempts, the state of the law is in chaos.”

There are “scores of other decisions misconstruing

Alameda Books, and this is a problem of huge

constitutional significance.” Furthermore, “the

decisions construing the ‘shifting burden’ of Alameda

Books are truly ‘all over the road.’” See Pooh Bah

Enterprises, Inc. v. The City of Chicago, No. 06-1614,

2007 WL 1985586 (U.S. 2007), cert. denied, 552 U.S.

941 (2007) (brief of Amici Curiae First Amendment

Lawyers Association and Free Speech Coalition in

support of Petition for Certiorari).

The call to reconsider Alameda Books from

members of state and federal courts, as well as

scholars, continues unabated. See, e.g., Daniel R.

Aaronson, The First Amendment in Chaos: How the

Law of Secondary Effects is Applied and Misapplied by

the Circuit Courts, 63 U. Miami L. Rev. 741 (April

2009) (noting that the “conflict among the circuits is

not limited to just the weight of evidence that is

necessary to ‘cast direct doubt’ on legislative findings,

but also the form of evidence that is even relevant to

meeting these standards”). See also Regulation of Adult

Entertainment Businesses -- Zoning, 12 Bus. & Com.

Litig. Fed. Cts. § 128:53 (4th ed. 2017) (stating that

since Alameda Books, “lower federal courts have

19

wrestled with several difficult questions regarding the

constitutionality of zoning ordinances governing adult

entertainment businesses” including “[u]nder what

circumstances is the government’s evidence of

secondary effects sufficient to support its zoning

regulations?”).

In Alameda Books the challenge to Los Angeles’

adult zoning ordinance was at a “very early stage in the

process.” 535 U.S. at 437. Certainly, given the sharp

split when this Court initially decided Alameda Books

back in 2002, and the conflicting decisions that have

resulted in its wake, the Supreme Court should grant

review to resolve, at long last, this perennial question

of considerable importance.

The Case also Presents an Important

Constitutional Question of Whether New

York City’s Adult Zoning Resolution, Which

Authorizes the Building Commissioner to

Consider “Titles” and Adopt Rules to

Determine the “Substantial Purpose” of a

Bookstore, Among Other Factors, Violates

the First Amendment

The Adult Zoning Resolution’s definition of an

“adult bookstore” provides that non-adult stock “shall

not be considered” in calculating compliance with the

60/40 Rule if any one of eight alleged “sham” factors

exist. Included in that list are whether the bookstore

offers a greater number of different adult titles than

the number of different non-adult titles. App.230. Thus,

the Adult Zoning Resolution adds an amalgam of

factors that supplant purely objective criteria -- relative

floor space and stock -- with impermissible contentbased standards.

20

Under the aegis of the Court of Appeals’ decision the

City of New York and other municipalities may now

dictate the content of bookstores -- including strict

limitations and restrictions on the variety of titles -through zoning laws. Criminal charges may be issued

to the operator of a constitutionally protected bookstore

based simply on the titles she offers for sale -regardless of the percentage of adult stock in the store.

Therefore, a storeowner who devotes the entire front of

her store to selling hundreds of copies of the same topten non-adult DVDs -- such as Hidden Figures and

Manchester by the Sea -- will not be able to have a

small section in the back containing a mere 15 different

adult DVDs. Instead, she will have to censor that

selection of erotic films to reduce the variety of adult

titles to a number less than ten. This chills the store

owner’s expression and limits the selection of

constitutionally protected material that can be accessed

by the public. Freedman v. Maryland, 380 U.S. 51

(1965); Shuttlesworth v. City of Birmingham, Ala., 394

U.S. 147 (1969).

In addition, even if a bookstore complies with the

60/40 floor space and stock requirements, and only has

a handful of adult DVDs or books, the store owner may

be subject to criminal charges or nuisance abatement

proceedings based upon “[o]ther features relating to

configuration and layout or method of operation, as set

forth in rules adopted by the Commissioner of

Buildings, which the Commissioner has determined

render the sale or rental of ‘adult printed or visual

material’ a substantial purpose of the business

conducted in such store.” App.231.

21

A representative of the Buildings Department is

now endowed with broad authority to determine the

“substantial purpose” of bookstores and to make

judgments in a sensitive area governed by the First

Amendment. Such a provision subjects expression to

restrictions and prior restraints without narrow,

objective, and definite standards. There are no

limitations on the Commissioner’s unbridled discretion.

Review by this Court is warranted to determine

whether it is constitutional to bestow such broad

authority on a representative of the Buildings

Department to make judgments in an area governed by

the First Amendment.

One of the most cherished policies of this nation is

that the First Amendment will not tolerate statutes

that endow government officials with unbridled

discretion to regulate or restrict expression. See, e.g.,

City of Lakewood v. Plain Dealer Publishing Co., 486

U.S. 750, 757 (1988). Indeed, because of the supremacy

of the First Amendment, this Court is vigilant against

censorship that masquerades as zoning or other

government regulation of controversial expression. See

Schad v. Borough of Mt. Ephraim, 452 U.S. 61, 84

(1981) (Stevens, J., concurring) (“municipalities may

regulate expressive activity -- even protected activity -pursuant to narrowly drawn content-neutral

standards; however, they may not regulate protected

activity when the only standard provided is the

unbridled discretion of a municipal official”).

22

This case presents a perfect opportunity to review

this important issue. As developed above, the New

York Court of Appeals decided the constitutionality of

the Adult Zoning Resolution under the First

Amendment. App.187. Seven Judges -- including three

Judges of the New York Court of Appeals -- found the

Adult Zoning Resolution to be unconstitutional. App.73,

164-65.9

CONCLUSION

For all these reasons, this Petition for Writ of

Certiorari should be granted.

Respectfully submitted,

ERICA T. DUBNO

Counsel of Record

FAHRINGER & DUBNO

767 Third Avenue, Suite 3600

New York, New York 10017

(212) 319-5351

erica.dubno@fahringerlaw.com

Counsel for Petitioner

9

The ordinance at issue in Los Angeles was “not limited to

expressive activities” and included massage parlors. Alameda

Books, 535 U.S. at 447 (Kennedy, J., concurring). Here, the

ordinance directly relates to the operation of bookstores -including particular details that restrict expressive activities.